1. In my opinion no question of law arises in this suit. The suit is brought by two youths who were at the commencement of the suit minors, namely, Raghupandan Ahir and Jagnandan Ahir, against their half brother Sheo Nandan, the son of a former wife of their father, for a declaration that the property mentioned in the schedule of the plaint was joint with the family property, and further alleging, though it is difficult to say that this was a definite form of relief, that certain proceedings with reference to the partition of the shares' in such property brought in the Revenue Court were improperly brought by the defendant. The property consists of two categories: (A) property admittedly ancestral, (B) - property comprised in certain purchases made ' between the years 1902 and 1907. It is of course with reference to the property in list B that the controversy arises. At the time when all these purchases were made both the plaintiffs were under age and it, therefore, maybe safely assumed that they knew nothing about the circumstances. At the time of the earliest purchase one of them was not born. The properties were bought by the defendant to some extent in his own name, and to some extent in his own name and that of one or other of the plaintiffs. It was necessary for us at the first hearing of the appeal to remit a certain issue of fast, the most important issue of fact upon the merits in the case for decision by the first Court. Unfortunately as too frequently happens when technical issues are raised, in a suit, the Court below overlooked what was really the fundamental question of fact in the case. It has now been, found as a fact that at the time when these purchases, were made the family was joint and the defendant was the managing' member thereof. That decision is obviously right. Apart from the direct evidence upon the point, all the circumstances pointed in that direction and it would indeed be sufficient to ask why if this man had separated from his brothers and was buying the property with his own separately acquired funds, he should drag in his brothers names, at all. Of course in the case of dealings by members of a joint Hindu family, it is not unusual and not improper; that property should be purchased and held in the names of one or other of the. members of the family, but it must be obvious to any one of common sense that that practice holds out considerable temptations to persons who are not above taking advantage of the position of junior members of the family. Judging from the oases which come up in appeal before this Court, it) happens much too frequently that where there are infant defence less members of the family, the managing member takes advantage of that circumstance to commit the mean and contemptible act of defrauding his infant brothers' in order' to enrich himself, and where a charge of that sort is made in a suit as, it was undoubtedly made in this suit, it is the duty of the trial Court to ascertain the real facts and the merits of the allegation. In this case it is now established beyond controversy that at the time of the proceedings in the Revenue Court, Sheonandan knew perfectly well that this was joint property in which his infant brothers were interested equally-with himself.
2. Sometime in 1913, the date is not precisely ascertained nor is it material, Sheonandan bethought himself of applying to the Revenue Court for a partition of the Mahal in which these properties were situated. The only: other persons interested of course weep these two boys, who at that time were aged about 13 and 11. It is not very important bat it does' appear that no' formal guardian is, as a matter of procedure, necessary to the proceedings in the Revenue Court, at any rate no forma] appointment was made and no enquiry of any sort or kind as to the fitness or otherwise of any person to look after the interests of these two brothers took place. The natural guardian was the mother; the second wife, an apparently ignorant, certainly illiterate, Ahir of forty years of age and judging from the observations of the trial Court of somewhat doubtful' integrity. It is difficult of course, if not impossible, to say what passed through the mind of Sbeonandan. It is unlikely in my view that he is possessed of sufficient intelligence to foresee the consequences which actually occurred of the scheme which he undoubtedly embarked upon. The probability is that it was suggested to him by somebody to put in an application in the Revenue Court for partition fortified with the title deeds recording dearly and distinctly the shares in which the property was supposed to be owned, and to suggest to the ignorant old mother that be, the managing member of the family, was well able to look after the necessary proceedings in the partition Court and that although it was necessary for her to act as guardian for these children, the less she interfered in the matter the better it would be for herself and everybody else, and in that way to lull her into a sense of security so that in fact there should be no real opposition in the partition proceedings. Whether that is the intention with which Sheonandan started out upon this enterprise, as I have said, it is impossible to say with confidence. From the point of view of moral integrity there is no difference between a scheme of that sort started in the hope that there would be no opposition from an ignorant person who knows nothing about the proceedings, and a scheme in which the opposition was by anticipation rendered ineffective. What happened is remarkable in its significance and convinces me that Sheonandan had more to do with the proceedings in the Revenue Court on behalf of the infants than appears by any evidence in the case. Whether the notice issued under the Land Revenue Act gave information to this ignorant old woman in such a way as to draw her attention * to the necessity of her taking any active steps by way of objection to defend the interests of the infants does not appear, but no doubt. everything was legally and properly done and notice issued '. under the proper section so as to call upon any person asserting his title to come in and make good his case Within the time limited by the Act nothing was done. Late in 1913, the document is not before us, an objection was put in which was really out of time, ' On the 11th of July 1914 an objection was put in before the Collector asserting substantially the, infants' case. The clear and forcible language in which that objection was framed satisfies me that it was drawn up by a skilled person who had been instructed more or less as to--the true facts. The contrast which impresses me is between the total absence of anything of the kind during the period when objection 'could lawfully be made and the expert objection which was ultimately filed when it was too late. That objection was dismissed by the - Assistant Collector three days afterwards as being out of time. An appeal was then launched to the Commissioner who felt himself compelled to dismiss it; pointing out that although the grounds of appeal gave excellent reasons why the objection ought to be heard, it gave no reasons as to why it was not presented in proper time. The result was that Sheonandan got what he wanted. His plan succeeded and he was from that date possessed of a decision apportioning this Mahal in his favour, awarding, if the term is a proper one, to him property which he knew perfectly well belonged to his infant half brothers.
3. Had that unfortunate result been arrived at by honest and proper proceedings in which no fraud had been practised either upon the opponent or upon the Court, and the objectors had been persons sui juris to whom proper notice had been issued and who were themselves to blame if they did not appear to support their objection, in our view, although upon the view we take of the facts it is not necessary to decide that point, the order of the Revenue Court would have been a fatal objection to this suit. A good'' deal of discussion has taken place about '. the various authorities upon, this point, but we think that for the time being it must be taken that the decision in Bijai Misir v. Kali Prasad 'Misfr 41 Ind. Cas. 912 : 39 A. 469 : 15 A.L.J. 496 (F.B.), adopting the view of the Full Bench case of Mnhammad Sadiq v. Laute Earn 28 A. 291 : A.W.N. (1901) 86 (F.B.), must be accepted by this and other Courts as finally laying down the ruling upon the interpretation of this sub section, namely, 233 (k), but questions of limitation, res judicata, etc., can have no force where fraud is established, A litigant cannot be allowed to set up his own fraud. As a matter of form it may be open to question what is the better or correct method of questioning proceedings obtained in the way these proceedings in the Revenue Court were - obtained in an ordinary suit in the Civil Court, It may be open to do it by review, although the question would at once arise whether a Revenue Court was able to review its own proceedings on these grounds. It may be done by a suit to set aside or possibly, as in England, it may be done by a suit for possession. or for a declaration of title, waiting until the defendant sets up the order in his favour and then showing by rejoinder that that order was' of no legal value. In this case, as I have said, the plaint was for a declaration of title and by an addition made by a subsequent amendment claimed a declaration that the proceedings in the partition case were fraudulent. We do not think that we can make a declaration in that form, but after all that is a matter of detail. The learned Judge who tried the case in the first instance definitely held that nothing had been suggested to lead him to think that the defendant had practised any fraud in the partition proceedings. He did, not know of course what we know now that the whole of these purchases had been made out of joint family funds, but we think in any case he took too narrow a view. I propose shortly, as we are differing from him, to examine the evidence in this suit as throwing light upon these partition proceedings. It is remarkably meagre. A person named Zaitun, whose daughter was then married to Raghunandar, was called and said that he was the general attorney for the mother, but he swore that he took no part in the partition proceedings except in 1,915, when- it was of course too late to make an application for stay, which was struck 'off. The mother who was called professed entire ignorance of the (partition case. Possibly she was putting her evidence too high but her cross examination is significant. Not a single relevant question was put to her. She was never asked with regard to the notice issued in the partition proceedings or how much she understood what part she took as guardian, whether she looked after the case in person or whether she employed any professional gentleman to advise and assist her. No question of any sort was put to her. That is the sum and substance of the direct; evidence on behalf of the plaintiffs. The defend-ant came into the box and he endeavoured 'to support his case by making out an alleged separation. That, as we have said, has been proved to be false. He said that the musammat looked after the. objections, whatever that means, and that she looked after the appeal, whatever that means, and that she Was present in Court, Of course it is absurd to suppose for a single moment that he expected anybody to believe that this illiterate woman of forty could, possibly look after objections and the appeal in any real sense or know what she had to do in preparing the necessary papers. He also said that one Ghulam Mohammad looked after the case, whatever that means of that when any specific allegation in evidence was made as to the actual part that anybody took, there was a sort of feeble and vague allegation that between them Zaitun, the musammat herself, and this Ghulam Mohammad looked after the case for the infants. Now what the defendant had undertaken to prove was something very different. In his written statement he said that the plaintiffs under the guardianship of their mother and lawful guardian frequently took objections regarding the amount of shares and other matters and were ah. successful after fighting up to the Appellate Court. There is not a word of truth in that allegation. There was no fight. The proceedings were in substance ex parte, The order was obtained, in the absence of anybody representing the infants,' by a false and fraudulent representation ' made by this man that the deeds which he had taken in -his own name and in the names of his brothers represented the true interests of the parties. An ex parte proceeding where owing to default or for unforeseen accident either party is absent, is a proceeding which is known to the law as uherrima fides that is to say, the law rightly lays the duty upon a person ' making a statement to a Court in the 'absence of the other side to be particularly careful not to mislead it. It is obvious that this must be so. It would be a shocking thing, merely because an absent party did not consider it worthwhile to dispute the real facts,' that an order obtained upon false facts in his absence should be held to be binding upon him. There is no analogy between a case such as this and that which- was cited to us on behalf of the respondent, where it was held that when once a suit has been fought and determined by parties sui juris affecting their rights in the ordinary way by conflict of evidence, a fresh suit cannot be brought in order to decide that the prior suit was wrongly decided upon false evidence, because the question whether the evidence is false or true is the question which has to be determined and has been set at rest for ever in the prior suit. That cannot be predicated of a statement made ex parte for the purpose of obtaining an order of the Court.
4. In the course of the judgment of the Court below it appears that Zaitun 'and the musammat made an unfavourable impression upon the learned Judge. It may be that they are untrustworthy persons. We do not see how in the circumstances of this case that can help the defendant. He knew the truth better than anybody and where a person initiates a proceeding for the purpose of perpetrating a fraud upon persons who were unable to look after themselves, it does not, to my mind at ; any rate, assist him to be able to show that these persons would have been properly looked after if the person whose duty was to do it had been more honest thin '.he was. Once it is established that whether by his own fraud or by neglect amounting to recklessness or wilfulness on the part of the guardian the managing member of a joint Hindu family has robbed the infant members, of the family, no question of procedure or technical refinement can be allowed to stand in the way of the Civil Court, before which the matter is' brought, compelling him to disgorge the proceeds of his roberry. This is really the statement of - the defendant's conduct. As I have already said, I think the suit is maintainable and that the plaintiffs are entitled to a declaration that this property in list B is joint family property, that they are entitled jointly to 2/3rd, the defendant being entitled to the other l/3rd, and that upon the facts found, the proceedings in the Revenue Court which terminated in August 1914 do. not invalidate the plaintiffs title. The appeal must be allowed with costs here and in the Court below, including fees on the higher scale.
5. I concur in the proposed order and in the reasons given for the. same. The suit as brought was one for establishment of the proprietary title threatened by a course of fraudulent conduct on the part of the defendant. I do not 'think that cognizance of the same by a Civil Court was barred merely because one step in the course of the' fraud in question, as alleged in the plaint, was the presentation of a certain application for partition in the Court of an Assistant Collector. The distinguishing features' 'of this case as, compared with other reported oases are the minority of the plaintiffs during the period covered by the origin of their cause of action, and the circumstances under which the defendant obtained the order of the Assistant Collector refusing to adjudicate upon the objection filed on behalf of the present plaintiffs. I see no reason to dissent from the conclusion arrived at by my learned brother, There-was some question in the Court below as to the effect of Section 42 of the Specific Relief Act. on the suit; but as the case stands I think the finding, that the plaintiffs were on the date of the presentation of their plaint in constructive possession, of the shares claimed by them, is warranted by the evidence. They were certainly, in such possession so long as they remained in law members, of a joint Undivided Hindu family with' their half brother Sheonandan, of which the said Sheonandan was the manager. If it was an essential part of the defendant's case, that he had ousted them from possession, it lay upon him to satisfy the Court when and how he did so. His own plea was that be had separated from his father before the birth pi either of these plaintiffs and that the property really in controversy, namely, the property specified' in list B appended to the plaint, had been acquired in the first instance, and had always been possessed by the parties respectively, in accordance with the shares shown 'in the revenue papers. This plea has been found to be false and the evidence on the point is conclusive against Sheonandan. I see no reason why it should not be held that the possession which the plaintiffs undoubtedly enjoyed up to within a year or two of the institution of the suit must be presumed, in the absence of a finding to the contrary, to have continued up to the date of the institution of the same. On this finding a decree for a declaration in the terms suggested seems the Proper relief to give to the plaintiff's.